State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
OAL DKT. NO. CMA 9926-00, Initial Decision
IVY WEST ERGAARD,
Petitioner,
v.
KIA MOTORS OF AMERICA, INC.,
Respondent.
______________________________
Howard A. Gutman, for Petitioner,
Bryan McElvaine, Esq., for respondent
(Cabaniss, Conroy &, McDonald, attorneys)
Before STEPHEN G. WEISS, ALJ:
PROCEDURAL HISTORY
This Lemon Law matter was transmitted to the Office of Administrative Law by the Division of Consumer Affairs as a contested case on November 28, 2000 and a plenary hearing was conducted by the undersigned Administrative Law Judge on December 11, 2000. Following the conclusion of the hearing, I asked counsel to submit additional items and the record closed on December 20, 2000.
TESTIMONY
Testimony was received at the hearing from three witnesses on behalf of petitioner and two on behalf of respondent. The Lemon Law complaint alleges that the vehicle owned by petitioner, a 1999 KIA Sephia, suffers from defects substantially impairing its use, value and/or safety; to wit, there is a serious brake problem manifested by excessive wear on brake pads and rotors which resulted in a much too rapid need for their repair and/or replacement.
A. For Petitioner
The first witness, Elizabeth Mae Westergaard, is petitioner's daughter and primary operator of the KIA which her mother purchased in August 1999. (Exhibits P-1, P-2).
Approximately six weeks after the purchase it was necessary for the witness to bring the car back to the dealer for repair. (Exh. P-3). The repair invoice for that visit (October 9, 1999) indicated that the brakes squeaked. As a result it was, . . . necessary to remove and replace brake pads and rotors. At that time the vehicle had 4,173 miles on the odometer.
Approximately two months later (December 11, 1999) after the car had been driven slightly less than 2000 more miles, it again had to be brought in for brake work. The repair invoice for that date (Exh. P-4) noted that the customer stated the brakes pulsate when stoping [sic] and also made noise. As a result, the brake pads and rotors again were replaced.
Then, on April 4, 2000, the vehicle was brought back for brake work a third time. The mileage on the odometer on that date was 11,666 miles. Among the repairs made (Exh. P-5) was a third replacement of brake pads and rotors in less than eight months.
According to Ms. Westergaard, the brake squeaking sounds began in early October 1999 and over time became louder, lasted longer, and the vehicle became harder to stop. When she took the vehicle back a third time on April 4, 2000 there also was a grinding sound. Due to the difficulty she had in stopping the vehicle, Ms. Westergaard said she was petrified, causing her to limit her use of the car. Thus, she often had friends drive her to and from work in Wayne.
On June 6, 2000 while driving in Wayne both the steering and brakes failed and damage was caused to the vehicle (Exhibits P-6, P-7). Previously in March 2000 a last chance letter had been sent to the manufacturer (Exhibits P-8, P8A).
Despite the replacement of brake pads and rotors on three occasions between October 9, 1999 and April 4, 2000, the brakes have continued to be a problem. Indeed, early in November 2000, the witness stopped using the vehicle altogether.
On cross-examination, Ms. Westergaard agreed that despite her concerns she used the vehicle continuously until early November 2000, and at the present time (December 11, 2000) the odometer displayed about 20,000 miles. She explained that her mileage use for the 63 days between April 4, 2000 (11,166) and June 7, 2000 (16,072) (about 4,900 miles) was due to the fact that she drove the car back and forth to the New Jersey seashore a few times. She also agreed that the brakes did not always squeak.
The next witness for petitioner was James Cookingham who was qualified as an expert in brake systems and brake repair. He holds an engineering degree from Lehigh University and is Master Certified by ASE. He is the owner of a company known as Nextech which diagnosis vehicle problems.
Cookingham personally inspected the KIA on December 8, 2000 when he test drove it. He also removed the wheels and tires to inspect the brakes, suspension and steering. His written report (Ex. P-9) indicated that the driver advised him that the brakes were noisy and the car shook really heard when the brakes were applied. She also denied that she rides the brake pedal.
After removing the wheels and tires and placing the vehicle on a lift, Cookingham found that the suspension and steering components were in satisfactory condition. The front tire treads both measured 5/32 seconds of an inch remaining and the rear tire treads measured 3/32 seconds of tread remaining. However, the right front brake pads were excessively worn. The inner brake pad measured 2/32 of an inch of friction material and the outside pad measured 1/32 of an inch. In his opinion, a minimum safe pad thickness should be about 4/32, and normal expected brake pad life is about 15,000 miles.
Cookingham found that the left front brake pads were in even worse condition. The inner brake pad measured 1/32 of an inch of material remaining and the outside pad measured 0/32 of an inch remaining - it was metal to metal. However, the brake drums, rear cylinders and springs all appeared to be in satisfactory condition.
Cookingham's report concluded that the petitioner's vehicle was not safe to drive and if brought to the OAL for a hearing should be towed there (which it was). In his judgment, in light of the excessive brake pad wear and rotor warp despite frequent changes, the vehicle's use, value and safety all have been compromised. Finally, he noted that he found no indication of any master cylinder, proportioning valve, brake pedal, rod adjustment, front caliper or other system components causing the problem.
On cross-examination, Cookingham agreed he has testified at the OAL hearings about 25 times. He also agreed that premature brake pad and rotor wear can be the result of driver habit, as well as mechanical malfunctions. However, the driver, Ms. Westergaard, insisted to him that she does not drive with her foot resting on the brake pedal and as far as he knew, her use of the brakes was average.
The last witness was petitioner, Ivy Westergaard, Elizabeth Mae's mother. She confirmed that from her personal knowledge her daughter's driving habits are not unusual, particularly insofar as braking is concerned. The car has not been operated since early November because of the problems with the brakes. She did note, however, that in the past the brakes would squeak for a time, then not present a problem, and then be a problem again. The vehicle had been towed to Newark for the hearing and the round trip tow cost was $275.
B. For Respondent
Two witnesses testified for KIA. The first, Louis J. Pagano, was qualified as an expert in brake system and repair. He is a field representative for KIA and investigates customer complaints. He, too, is ASE certified. Pagano first inspected the vehicle on June 22, 2000 following the accident in Wayne earlier that month in order to see if there was any connection between the accident and any brake or steering problems. He removed the wheels, inspected the brakes and found that the pads, at that time (about ten weeks after the last replacement in April) were almost new. All brake parts seemed to him to be in fine working order and there were no hydraulic leaks.
According to Pagano, the usual cause of brake wear is driver habit. There being no other explanation concerning the brake problem in this case, he concluded that the brake and rotor wear is due to that cause. He also disagreed with Cookingham regarding the expected life of brake pads, stating there is no rule of thumb. He did concede, however, that brake pads normally should last more than 5,000 miles before needing to be changed.
On cross-examination, Pagano conceded that even though the brakes looked almost new on June 22, 2000, he had no reason to dispute the finding made on December 8, 2000 by Cookingham concerning excessive wear and tear even though the vehicle had been driven only about another 4,000 miles. He also noted that KIA had issued a Parts Bulletin concerning a change in brake pad material in late 1999. The purpose of the change was to obtain a longer pad life and he now would estimate that a normal amount of time before having pads changed would be about 10,000 miles. At my direction, the Parts Bulletin was submitted following the hearing and will be marked as Exh. C-1.
The last witness, John Scott, also qualified as an expert in brake systems and repairs. He is a KIA district parts and service manager in New Jersey and has worked for over 30 years in the automobile industry. Non-warranty repairs such as brake pad and rotor replacement often is done by a dealer as a matter of good will in an attempt to maintain customer satisfaction. In his judgment, changing brake pads every 5,000 miles or so on a 1999 KIA is not that unusual and in his experience the range has been from 3,000 to 20,000 miles. Variations, he said, are due in large part to driver habit.
DISCUSSION
At my request counsel submitted memoranda identifying previous cases heard at OAL involving KIA vehicles and complaints about brake pad and rotor wear. One of those decisions, McLean v. KIA Motors America, Inc., OAL Dkt. No. CMA 7828-00, decided October 18, 2000, affirmed November 8, 2000, was a matter which was heard by the undersigned. In that case I reviewed and distinguished the decision by Administrative Law Judge Ken R. Springer in Williams v. KIA Motors America, Inc., OAL Dkt. No. CMA 11772-99, decided January 10, 2000.
In McLean I rejected petitioner's claim that the necessity to replace brake system parts over a relatively short period of time constituted a substantial defect on the basis that the testimony by petitioner's expert witness was lacking in credibility and no visual inspection was made by him of the rotors and brake pads.
To the contrary, in the Williams case, there was a personal inspection of the braking system and both pads and rotors had to be replaced five times within 12,000 miles of use. In McLean, brake pads were replaced just twice, and rotors only once in eight months.
A case similar to the instant one is Labinsky v. KIA Motors America, Inc., OAL Dkt. No. CMA 6045-00, decided September 7, 2000. In that matter, the rotors and brake pads were replaced four times between late March and early October 1999. Based upon the evidence in that case, the ALJ found that the necessity to make that many replacements over such a short period of time was unacceptable. As he put it, the need to replace three sets of rotors during the first 8,000 miles of use cannot be justified absent an identifying cause.
The facts in this case, as noted, are much closer to those Labinsky than in McLean. Cookingham was not challenged on credibility grounds and he personally inspected the brake pads and the rotors and found them to be in remarkably poor condition. Rotors and pads were replaced when the vehicle had 4173 miles on the odometer, again approximately 2000 miles later and again about 5000 miles later (Exs. P-3, P-4 and P-5). Clearly, petitioner has established by a preponderance of the credible evidence that a defect in the braking system (excessive brake pad and rotor wear) constitutes a substantial defect impairing the use, value and safety of the vehicle in question and I CONCLUDE that Lemon Law relief is appropriate. Three replacements of these items in less than eight months after only 11,166 miles of use is not acceptable, absent competent proof of driver abuse.
______________________________________________________________________________________
OAL DKT. NO. CMA 7828-00
JACQUELIN Y. McLEAN,
Petitioner, KIA MOTORS OF AMERICA, INC,
Respondent.
___________________________
Rosalyn Mink, Esq., for petitioner
(Mink & Meislik, attorneys)
Bryan McLvaine, Esq., for respondent
(Cabaniss, Conroy & McDonald, LLP, attorneys)
Record Closed: October 11, 2000 Decided: October 18, 2000
BEFORE STEPHEN G. WEISS, ALJ:
Procedural History
This matter was transmitted to the Office of Administrative Law by the Lemon Law Unit in early September 2000 as the result of the filing of a petition by Jacquelin McLean complaining that defective brakes on her 1999 Kia Sephia created a substantial diminution in the vehicle's use, value and safety. An answer was filed by the respondent Kia Motors of America, Inc. (hereinafter Kia) and the case was heard before the undersigned administrative law judge on October 4, 2000. The record was kept open for one additional week in order to provide counsel an opportunity to submit post-hearing memoranda devoted to any previous decisions which either side felt were pertinent to the instant case.
Testimony
Testimony was received at the hearing from two witnesses on behalf of the petitioner, and one on behalf of Kia. The first witness was petitioner Jacquelin McLean. She purchased a 1999 Kia Sephia on August 16, 1999 (Exh. P-1, P-2). On November 26, 1999, as a result of problems she felt she was having with the braking system, she brought the vehicle back to the dealer for repair (Exh. P-3). At that time, because of her complaints of grinding and vibrating, brake pads and rotors were replaced.
On January 13, 2000, McLean brought the vehicle back to the dealer a second time. Although she testified that at that time the brakes were grinding, the repair order for that date (Exh. P-4) makes no mention of that contention. Rather, the only reference to the braking system is: rear brake service as part of a 7,500 mile service visit. Also, in a letter which petitioner sent to the Lemon Law Unit on May 3, 2000 (Exh. R-1) wherein she related the chronological history of her problems with the vehicle, she does not mention any problem with brakes for the date of January 13, 2000.
According to McLean, grinding, bumping and vibrating noises appeared often. Thus, on April 15, 2000, she again brought the car back to the dealer at which time brake pads were replaced (Exh. P-5).
Unfortunately according to McLean, even after the April 15 repair, the problems continued and she again brought the vehicle in to the dealer on May 15, 2000. The repair order for that date indicated her complaint to be that the brakes are noisey [sic] scrapes. However, the repair person's comment was: OK at this time. (Exh. P-6)
Even after the May 15, 2000 visit the problems, according to McLean, continued to persist and she was compelled to file for Lemon Law relief. Recently, on September 30, 2000, she took the car back to the dealer at which time the service department found: front brake rotors out of round (Exh. P-7). Indeed, McLean indicated that at the time she brought the vehicle back in September she did not complain of a problem with the brakes and it was the service department, itself, which took note of a rotor problem.
Based upon the foregoing chronology of events and the persistency of the brake problems she said she has with the car, McLean feels that the vehicle is not reliable and she is afraid of a brake failure in case of an emergency.
On cross-examination, McLean agreed she drives the vehicle 15 to 20 miles per day (round trip to work) and that much of it is city driving (Passaic to Paterson) during which she passes many public schools. She also agreed that on January 13, 2000 she did not complain of a problem with the brakes when she brought the car back to the dealer.
McLean also commented on the test drive conducted on the date of the hearing. She noted that the car was driven for about two miles at a slow rate of speed and the brakes were applied a lot. She said the problems she experienced were not as bad today and were described as minor. Also, she noted no burning odor from the brakes.
The second witness for petitioner was Edward Day who was qualified without objection as an expert in auto mechanics. He has been engaged in the repair business for about fifty-five years and during the 1970s was in charge of two repair centers where he supervised several mechanics. He has operated his own repair shop since 1978 and is ASE certified in all areas of automobile mechanics, including braking systems.
Day test drove the vehicle in late July and noted that when he applied the brakes they pulsated and made a grinding sound. Also, occasionally when he would apply the brakes the steering wheel would begin to shake from side to side. Basically, he described the braking system as very erratic.
With respect to the out of round comment by the dealership in the September 30, 2000 repair order (Exh. P-7) this meant that the thickness of the rotor varied when it should have been uniform. An out-of-round rotor must be replaced since that condition can cause overheating and on a slippery surface an operator could lose control of the vehicle.
When Day took the test drive last July he detected a smell from the brakes which he described as a cooking condition. He also noted the same smell on the date of the hearing, but not as intense. Day also identified a written statement he had prepared on September 7, 2000 concerning the road test he conducted in July in which he said that the vehicle appears to have had: . . . many brake parts replaced because of a vibration or pulsation while braking, and that the . . . brake sensation is pronounced more at lower speeds and has a tendency to make the car go side to side. He felt that in an emergency situation the driver could lose control of the vehicle and on slippery surfaces that loss of control could be very dangerous. Finally, he noted that when first driven the vehicle displays a distinct grinding sound when the brakes were applied (Exh. P-8).
On cross-examination, Day agreed that when he road tested the vehicle in July he did not remove the wheels in order personally to inspect the braking system components. Thus, he could not say whether there was any need to replace pads or rotors or to do any other work. Although one can attempt to correct rotors which are out of round by cutting them in order to even out the surfaces, that activity is no longer recommended. With respect to the Kia in question, he has no idea how thick the rotors are.
Day concluded that the need to replace a rotor in November 1999 and brake pads in April 2000, and the recent reference to a rotor being out of round, represented a need for much more brake work than ought to have been needed on a vehicle with such modest use. In response to my question, he said that a vehicle like this one, driven approximately 13,000 miles in thirteen months, should not yet need new pads or rotors at all.
The sole witness for respondent was John Scott, Kia's parts and service manager for Northern New Jersey who has been engaged in the automotive repair industry for about thirty years. He, too, was qualified as an expert witness. With respect to a need to replace brake pads, he indicated that this activity is subject to many variables. Basically pads are a wear and tear item which one expects to be consumed by vehicle use. Although brake pads are not warranteed, as a matter of customer relations dealerships often will replace them at shorter intervals than needed. Thus, the mere fact that brake pads are replaced does not indicate that there necessarily is any problem with the brakes at all. Particular usage by an operator, weather, road conditions, etc. all come into play and it is impossible to generalize concerning the need actually to replace brake pads or simply to accommodate a customer.
Scott drove McLean's vehicle on the date of the hearing, accompanied by Day and McLean. At no time did the vehicle exceed twenty miles per hour and it was driven only about two miles. Although the vehicle was stopped by applying the brakes at least twenty times (both aggressively and gradually) he did not hear any grinding sound nor did he feel any vibration other than a slight pulse in the pedal. As far as he was concerned, based upon the road test that was taken, McLean's vehicle presents no safety problems at all with respect to the braking system.
Scott also observed that an odor is to be expected because any application of the brakes creates friction, which gives rise to heat and thus an odor. This is a condition which results from normal brake functioning.
On cross-examination, Scott agreed that other owners of Kias had mentioned dissatisfaction with brakes, but said this was not an uncommon problem in the automotive industry regardless of the make or model of the car. He also noted that sometime during August 1999, Kia introduced a new type of brake pad which somewhat improved the life expectancy of the item. He assumed that the new pads were installed in McLean's vehicle since it was purchased during August 1999, but he had no verification of this.
On redirect-examination, in reference to a comment made by Day that brakes sometimes seem to heal themselves, Scott disagreed. As he put it, brakes which have a problem do not get better.
As noted, following conclusion of the testimony, I provided counsel an opportunity to submit post-hearing memoranda relating to previous cases which either felt was pertinent to the instant matter. In response, a memorandum was received from counsel for McLean.
Discussion
Lemon Law relief is awarded where the petitioner demonstrates that a defect exists which creates a substantial impairment in the use, value and/or safety of the motor vehicle and the respondent manufacturer has failed to correct the defect despite having been given the requisite number of opportunities to do so. In this case there is no challenge respecting the number of efforts given to Kia - the issue; rather, is whether the problems about which McLean complained existed and, if so, did they rise to a level sufficient to award her the relief she seeks.
Of course, McLean's own testimony is highly subjective as she is pursuing a claim on her own behalf. On the other hand, I was impressed by her candor with regard to improvements she has noted in connection with the brake problems. Also, she did not dispute that when she brought the car back on January 13, 2000 she did not state that the brakes were giving her continued difficulty, although at the hearing she said that they did.
Petitioner's expert, Edward Day, previously has testified before the Office of Administrative Law and counsel for McLean provided a copy of Judge Ken R. Springer's initial decision in Williams v. Kia Motors of America, OAL Dkt. No. CMA 11772-99, decided January 10, 2000, in which Day testified. That case also involved a complaint concerning the brakes on a Kia Sephia and Day had been engaged to examine the vehicle. He had testified that he put the vehicle on a lift and actually removed wheels in order to examine the rotors and pads. He found the rotors to be defective and that the pads and rotors had to be replaced much too frequently. Thus, he opined that the vehicle in Williams was unsafe because of inconsistent braking which could cause the driver to lose control of the car, especially on a wet roadway. However, he admitted on cross-examination that his compensation for testifying depended upon whether the client won or lost the case, and because of his close working relationship with Ms. Mink, he considered himself to be an advocate for the consumer. As a result of Day's financial arrangement (not to mention his view as an advocate) Judge Springer properly found that his objectivity as an expert was compromised and his credibility seriously reduced insofar as his independence and reliability of his testimony was concerned.
I agree with Judge Springer's commentary concerning Day's testimony in proceedings of this sort. Although in Williams Judge Springer ultimately held in favor of the owner, I am extremely uncomfortable with the notion that any of Day's testimony can be relied upon insofar as expertise is concerned. He is, rather, a hired gun and not necessarily helpful to an administrative law judge in proceedings of this sort.
Here, unlike in Williams, Kia's expert (with perhaps the same bias although not hidden) did not concur with Day's view. Indeed, Scott noted that brake pad wear and tear depends upon a variety of factors, including how the operator applies the brakes. In short, one cannot generalize concerning whether the need to replace brake pads at various frequency intervals is meaningful in any substantial way.
Scott accompanied Day on the test drive on the day of the hearing. He did not hear any grinding sound nor feel any meaningful vibration in the brake pedal. Also, he starkly disagreed with Day's suggestion that sometimes brakes can heal themselves. As Scott described it and as noted above, if there is a brake problem of any significance due to defective parts and materials they do not get better - they get worse.
Nor do I believe that the September 30, 2000 notation that a rotor was out of round (Exh. P-7) provides a basis for relief in this case. Wear and tear on rotors and/or brake pads is a normal consequence of vehicle use and does not make a lemon out of a car simply because those items have to be replaced. Indeed, the facts in that respect in Williams are quite different from those here - First, Day personally inspected the brakes in Williams, but did not do so in this case. Furthermore, as Judge Springer noted in his decision in Williams, brake pads and rotors were replaced five times within 12,000 miles unlike in this case where a rotor was replaced only once (11/26/99) and brake pads twice (11/26/99 and 4/15/00). Here, too, unlike in Williams, Kia denies that the brakes were defective or that the problems about which McLean complains continue to exist.
Based, then, upon my review and consideration of all the testimony as related above, and in light of my consideration of the deficiencies in Day's expert testimony, I CONCLUDE that the McLean vehicle does not have a defect causing a substantial impairment in use, value and/or safety. Accordingly, Petitioner's Lemon Law petition is DENIED
______________________________________________________________________________________________
QUALIFICATIONS AND EXPERIENCE OF
THIS LAW OFFICE
Howard A. Gutman has successfully handled over 200 lemon law and automobile breach of warranty cases. He is the author of the leading article on the lemon law published in the New Jersey Law Journal. He also wrote the Year 2000 Legal Handbook, a book dealing with computer warranties, and is considered a leading authority on all types of warranties.
Prior to establishing his practice, Mr. Gutman was employed by one of the leading law firms in New Jersey and a prominent international law firm located in the Wall Street area. He has appeared on Good Day New Jersey been interviewed by NBC Nightly News and Newsday, and his cases have been profiled in the Star Ledger, Bureau of National Affairs Magazine, and New York Times.
HOW DO I CONTACT YOU
Law Offices of Howard A. Gutman,
1259 Route 46, Parsippany, New Jersey 07054
(973) 257-9400, E-mail Howian@aol.com
Fax (973)257-9128
New York Office
110 Wall Street, New York, New York 10005
Tel. 212-701-8564
FREE INITIAL CONSULTATION
We offer a free initial telephone consultation to discuss your lemon law case. Please feel free to call or e-mail our office.
WHAT WE OFFER THAT OTHERS DON'T
Home Page
KIA SEPHIA BRAKE
PROBLEMS AND CLASS ACTION